This result was intended to defeat the tremendous incentive for employers to hire illegal immigrants. If such workers were not eligible for PA workers’ comp benefits, an employer could simply discard the worker when he or she was injured. Employers in PA, as well as throughout our Country, are already required to ascertain a potential employee is eligible to work in the United States. Sadly, employers regularly disregard such Federal laws, apparently without any official retribution.

On the other hand, the PA Supreme Court also recognized that the immigration status of an injured worker is relevant to an injured worker’s employment status. Therefore, an undocumented worker is entitled to PA workers’ comp benefits as long as the injured worker is totally disabled. Once the injured worker is released to any type of work, however, the reason the injured worker is not employed is the immigration status. As such, once an undocumented worker is released back to any type of gainful employment, a Pennsylvania workers’ compensation insurance carrier can obtain a suspension of wage loss benefits (medical benefits do continue without regard to immigration status).

In this case, the worker suffered a back injury, alleged to be a herniated disc with lumbar radiculopathy, while performing his job and subsequently filed a Claim Petition. During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker was asked whether he was a citizen and whether he was an undocumented worker; he refused to answer either question, invoking his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Both the injured worker, and the workers’ comp insurance carrier submitted medical testimony that the injured worker was not physically capable of performing his pre-injury job, but that he was capable of modified duty work.

The WCJ granted the Claim Petition, but found that wage loss benefits were suspended on the date of the injury, because the injured worker was an undocumented alien worker. The WCJ arrived at this conclusion by taking an “adverse inference” from the injured worker’s refusal to answer questions regarding his immigration status.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the suspension of benefits. The WCAB ruled that an adverse inference alone was not enough to prove that the injured worker was an undocumented alien. This was affirmed by the Commonwealth Court of Pennsylvania. Since the burden on whether the benefits should be suspended rested with the workers’ comp insurance carrier, the suspension was not warranted. That the WCJ drew an adverse inference was correct, said the Court, but the adverse inference alone could not prove that the injured worker was an undocumented alien.

As attorneys who represent injured workers in PA, we have been hearing a great deal of griping from attorneys for the insurance carriers about this decision. How can they prove an injured worker is an undocumented alien, they complain. To us, the answer is simple and ironic – the United States Government created a process for employers to ascertain a prospective employee’s immigration status several years ago. If employers simply abide by already existing Federal law, they will not “accidentally” hire an undocumented alien, and this will never be an issue. We greet these workers’ comp insurance carrier complaints with amusement, since the problem stems solely from the employers’ own illegal actions.